Thursday, 30 October 2008

This started as a simple reply to a link (http://government.zdnet.com/?p=4152) my dad sent me. It’s about Constitutional questions surrounding the RIAA’s litigation against people accused of sharing music via P2P.

My reply:

I believe a lot of what the RIAA relies on is that copyright, although drawn from Article I, Section 8 of the Constitution, is in the Civil code, not the Criminal code. As part of civil code, they are not as tightly bound by the excessive fines and unusual punishment clauses of the 8th amendment. Besides, the constitution really only controls what the government can do, or not do (as it’s mostly prohibitions), to the people. It doesn’t so much control what one person can do to another.

There’s nothing to stop you from suing someone for $1-million because they stepped on your lawn. You’re just not likely to get it because the judge and the jury in a civil case aren’t bound to sympathize with you.

I’m not saying the RIAA is right. Quite the contrary. I think they’re hopelessly misguided in suing their customers in the manner they have. I think that copyright law, as it exists today, is hopelessly broken. I think the attempts to “fix” or “strengthen” copyright law (things like the DMCA) are hopelessly anti-consumer.

The entertainment industry routinely lobbies for trade agreements and treaties, which they then lobby other countries to sign onto, then come back to the US government cajoling (demanding?) they adjust existing laws and create new ones to support the newly ratified treaty that they essentially bought.

With that in mind, and as a creative artist, what do I think is reasonable? My photography is bound by copyright. Every creative work, whether writing, photos, video, music, software, etc. is. The creator, or artist, isn’t even required to register their copyright any more; although doing so provides extra protections under the law. So what do I want? What do I think is fair?

I think 25 years is fair. That should be plenty of time for me to realize any monetary benefit from selling or licensing my creative work. After that, it should fall to the public domain. If I can’t make money off it in those 25 years, then I’m obviously incorrect in my assessment of the value of a given work.

I don’t think that we should be able to perpetually renew a copyright, nor should it be able to pass down by inheritance to extend the 25 years to something beyond my passing.

25 years from date of creation, no matter who owns the rights. If my descendants want to make a living from my work, they will just have to hope I die early and leave it to them in my will — the clock is ticking.

Even after the 25 years, just having the older materials around doesn’t mean you’ll do something wonderful. I’m a photographer, so I’ll use Ansel Adams as part of my example. If all of his photos were in the public domain, I could assemble them into a book, but I’d still have to bring something to the table. I’d need to offer some kind of commentary or interpretation, or add color in some way. I’d need to do something to make my use interesting. Anything less and I’m just some guy with a fancy coloring book.

So, what about sampling and derivative works? 10% seems fair, with credit. That covers education and criticism too. It let’s everyone do something new and allows someone to be inspired by your work and hopefully create something new and interesting.

Sure, 10% doesn’t stop one band from using the bass-line or central riff from another band’s song. Sure they can build a song from that and still fall within the scope of what I’d allow. It’s a double-edged sword too. If your work isn’t interesting, you’ll only look like a schmuck.

10% won’t stop one film-maker from building their movie around a pivotal scene from that of another, but if their movie isn’t entertaining, then they’re just a hack. Remember, Hollywood has been doing this same basic thing for years.

The real problem comes in trying to figure out what to do when someone breaks the rules. What is an appropriate punishment?

The current laws provide for damages from $750 per use up to $15000 each. For some things that seems far too high (sharing a single song when the price is only $1 via iTunes) and other’s it’s far too low (that same song when it’s used in an advertisement). And what constitutes a single use? Each person that hears an ad, once for every time the ad runs, or just once total because it’s only one ad?

Any off-the-cuff thinking here quickly falls apart. At first 10 times the price of the original item seems like a good idea. A song on iTunes goes for 99 cents. Is 10 bucks enough to convince people behave themselves, especially when they may or may not get caught?

What if it was 10x original value with a $1000 minimum? While it would probably discourage the average consumer, what about commercial misuse? Even $1000 isn’t enough to prevent a radio or TV station from taking a chance on an infringing use. What would stop an advertiser from using any old song in their advertisement or a photograph as the background to a presentation for an internal meeting if all they’d have to pay is $1000, assuming they got caught?

Clearly I don’t have all the answers. Even as an artist I can only wrap my brain around maybe half of it before my head explodes.